2006/Vol. 5 No.1 - Hamline Law - Hamline University

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54 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1 credibility of the other party. 214 Usually the cross-examiner is eliciting information from the witness which supports the theory of the crossexaminer’s case. Cross examination questions should be closed, controlled questions in which the advocate is seeking a “yes” or “no” answer. For example, “You signed the contract, didn’t you?” “You understood you were obligating yourself and your company when you signed the contract?” “You did not make the list of reasons until after you terminated the contract, did you?” Sometimes the cross-examiner might ask a wideopen question like “why.” The best practice in arbitration, however, is for the cross-examiner to ask a series of controlled questions to bring out the specific and precise points through the witness that he or she wishes to highlight. Typically, don’t ask “why” or “how” or other direct examination questions. Ask questions which take from the witness, to the extent possible, all the facts the witness has which support the cross examiner’s theory of the case. On cross examination highlight the information the witness has which supports the examiners theory of the case. It is important when an advocate cross examines a witness, the advocate is absolutely sure as to what his or her theory of the case is. “For maximum effect, the questions on cross-examination should be crisp and short . . . [S]hort pauses can focus [the arbitrator’s] attention on the questions and answers more fully than if the cross-examination questions are fired at the witness in rapid succession.” 215 Be very civil. Ask questions in a calm, respectful manner. Do not attack the witness. If the witness being cross examined does not answer the question you just asked, simply blame yourself in the way you asked the question and ask it exactly the same way only more gently. “I am sorry if I asked the question so you did not understand it, you read this contract when you signed it, didn’t you?” L. Redirect Examination Once cross examination is finished, the advocate who originally called the witness has an opportunity for redirect examination to clarify any points the advocate wishes, which were brought out on cross- 214. Rt. Hon. Lord Mackay, The Advocate: Should He Speak or Write?, 60 FORDHAM L. REV. 953, 959-60 (1992). 215. David E. Robbins, Discovery and Hearing Presentation Techniques, in SECURITIES ARBITRATION 1992, at 545, 578 (PLI Corporate Law Practice, Course Handbook Series No. B4-7006, 1992) (quoting CRAIG A. PETERSON & CLAIRE MCCARTHY, ARBITRATION STRATEGY AND TECHNIQUE (1986)).
2006] ARBITRATION: THE BASICS 55 examination. The redirect examination should only address what was brought out in cross-examination. The redirect examination is not intended to be a restatement of the direct examination. The goal is to narrow the scope of the witness’ testimony. M. Re-Cross Examination Once the redirect examination is finished, the opposing lawyer has an opportunity to re-cross examine the witness. Again, the re-cross examination is intended to be very narrow. It is intended to be limited to only those issues that were raised on redirect examination. N. Hyper-Aggressive Advocates It is with the right combination of reason and emotion that an advocate can be most effective. 216 “Many opinions have been expressed from time to time about the character of the highest advocacy and the highest oratory. It would seem to be the view of those best qualified to judge that simplicity of speech, linked with the expression of the deepest feelings of mankind, has always had the power to stir men’s blood in all ages of the world’s history.” 217 For this reason, in arbitration, the hyperaggressive advocate is less effective than the advocate who is civil. Civility is essential for the effective and efficient operation of an arbitration hearing. Some advocates do not recognize the value of civility as an effective advocacy tool and display excessive aggression that disrupts the arbitration hearing. For example, some advocates use hyper-aggressive methods in their questioning. “If you weren’t lying, you would know, wouldn’t you, that the light was green?” The other advocate is offended and attacks the behavior in words, tone, and anger. In an attempt to control such aggression from both sides, one method used by experienced arbitrators is to take a break and ask to speak to the advocates. Out of the hearing of the parties and witnesses, the arbitrator may simply tell the hyper-aggressive advocate that he/she is making a bad impression on the arbitrator, the decision-maker. The arbitrator can repeat back to the advocate what he/she said, and tell the advocate that, if the advocate is doing this to impress the client, then the arbitrator understands. But if the advocate is doing this to impress the arbitrator, it 216. John C. Shephard & Jordan Cherrick, Advocacy and Emotion, 138 F.R.D. 619, 619 (1991). 217. Id. at 620 (quoting NORMAN BIRKETT, SIX GREAT ADVOCATES 109-10 (Penguin Books 1961)).
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2006/Vol. 5 No.1 - Hamline Law - Hamline University

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